Taking from States: Sovereign Immunity’s Preclusive Effect on Private Takings of State Land

58 Pages Posted: 13 Jul 2020 Last revised: 6 Mar 2021

Date Written: June 19, 2020

Abstract

The core of a state is its physical presence and dominion over its land. States are now battling to maintain their dignity as sovereigns, while traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, threaten state sovereignty by attempting to take state property without consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and take a state capitol—and the state would have no recourse to respond. However, because takings must be effectuated through courts, federal courts remain as a bulwark against improper intrusion into core sovereign realms.

Where the private company seeks to exercise the power of eminent domain and condemn state-owned land, how should courts evaluate a state’s defense of sovereign immunity under the Eleventh Amendment? This Article traces the independent but overlapping histories of state sovereign immunity and federal eminent domain power. We argue that under current state sovereign immunity doctrine, within the limited instances in which Congress has delegated its eminent domain power to a private actor for a specified public use and just compensation, the private actor is nonetheless prohibited from wielding that power to take state lands, absent state consent. This Article ultimately concludes that a delegation of eminent domain authority to a private actor does not abrogate or waive the independent state power of sovereign immunity, therefore rendering private parties unable to exercise eminent domain to take state property. Although intertwined, the separate and distinct history and evolution of delegated eminent domain and sovereign immunity doctrines confirm that where they collide, state sovereign immunity is still supreme.

Suggested Citation

Danis, Jennifer and bloom, michael, Taking from States: Sovereign Immunity’s Preclusive Effect on Private Takings of State Land (June 19, 2020). Taking from States: Sovereign Immunity's Preclusive Effect on Private Takings of State Land, 32 Stanford Law & Policy Review 59, Available at SSRN: https://ssrn.com/abstract=3631160

Jennifer Danis (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027
212-854-4585 (Phone)

Michael Bloom

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

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